Dispute Resolution Processes - Design-Build for Water and Wastewater Projects - page 299

T The formation and use of a Dispute Review Board has helped us in several ways

on this complicated design-build project. First, the design-build proposers looked upon
our project favorably when they learned that we were going to use a DRB, which has
become commonplace in the tunneling industry. Next, we have found that having
quarterly meetings has forced the parties to think beforehand about whether there
are any potential problems that should be discussed with the DRB. This process has
been more methodical than I have seen on other projects that simply use partnering
and jobsite meetings. In addition, our contract provides the ability to have the DRB
provide informal opinions, which all believe is an attractive option for smaller-scale
issues. Finally, the presence of the DRB is a great incentive to resolve disputes. We
have discussed with the design-builder on more than one occasion about whether we
should “take an issue to the Board.” Each time we jointly elected not to do so, but
instead worked on a plan to further resolution of the issue. Given the complexity of
our project, there certainly could be a point in time where we may ask the DRB to
assist us in resolving a problem. Knowing that, our interaction with the Board in our
regular quarterly meetings gives us great confidence that their advice or recommenda-
tions will be thoughtful, practical, and appropriate. While we have several years to go
before completion, establishing a DRB has been an excellent way to maintain positive
relations with our design-builder.

— Mari Bochanis, Project Counsel for Southern Nevada Water Authority on the Lake Mead
Intake Tunnel #3

Arbitration is only available if the parties have agreed to use it. They are free to make
their own rules, including selecting
1. The administrative agency (e.g., American Arbitration Association, International
Chamber of Commerce), if any, that will administer the arbitration
2. The rules of the arbitration, including the number of arbitrators who will decide
the dispute
3. The extent, if any, of prearbitration discovery
4. The time and location of the hearing, and the form of arbitration award
5. The ability to add any other parties into the hearing
Litigation does not require any agreement to initiate the process—it is the dispute
mechanism that is used when other approaches have failed or are not available. Litigation
procedures are prescribed by applicable state and federal statutes and regulations, with
the parties having little control over the process once it starts. Some issues, such as the
waiver of a jury trial and the forum for the proceedings, can be established by contract to
help control aspects of litigation before the action is initiated.
The construction industry has long considered arbitration as preferable to litigation,
and this is reflected in most of the standard form industry contracts developed by the
American Institute of Architects (AIA), Engineers Joint Contract Documents Committee